European Court of Human Rights

The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Switzerland recognised the compulsory jurisdiction of the Court (Article 46) (art. 46), while the Government’s application referred to Articles 45, 47 and 48 (art. 45, art. 47, art. 48). The purpose of the request and of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 5 para. 4 (art. 5-4).

The Government’s memorial was received at the registry on 5 August. In a letter dated 8 August, Mr. Sanchez-Reisse’s representative stated that he would submit his comments at the hearings. On 14 October, the Secretary to the Commission informed the Registrar that the same would apply as regards the Delegate’s observations.

There appeared before the Court:

- for the Government

       Mr. O. Jacot-Guillarmod, Head

                            of the International Affairs Department of the Federal         

                            Justice Office,                                                             Agent,

       Mr. P. Schmid, Deputy Director

                            of the Federal Police Office,

       Mr. B. Münger, Federal Justice Office,                                   Counsel;

- for the Commission

       Mr. J.-C. Soyer,                                                                       Delegate;

- for the applicant

       Mr. P. Gully-Hart, avocat,                                                     Counsel.

The Court heard addresses by Mr. Jacot-Guillarmod for the Government, by Mr. Soyer for the Commission and by Mr. Gully-Hart for the applicant, as well as their replies to its questions.

On 18 February 1986, the President of the Chamber asked the applicant’s counsel to submit his own observations, which were received at the registry on 3 April.

On 24 April, the Deputy Secretary to the Commission communicated to the Registrar the Delegate’s comments on those observations.

AS TO THE FACTS

I.   THE CIRCUMSTANCES OF THE CASE

A. Extradition proceedings

1. The applicant’s arrest

The authorities of the Argentine Republic had sent radio-telegrams to the authorities of the Swiss Confederation on 10 and 11 March asking for help in identifying the five persons thought to be responsible for kidnapping a Uruguayan banker, K, in Buenos Aires on 19 February. The kidnappers had demanded a ransom and had required K’s wife and sister to go first to Paris, then to Zürich - where the money was placed by them in an account opened in their name with the Crédit Suisse - and then to Geneva.

2. Extradition requests from the Argentine authorities

(a) First request

(b) Second request

3. The applicant’s objection to his extradition

4. The Federal Court’s judgment

5. The criminal proceedings instituted against the applicant in Switzerland

On 25 April 1983, the applicant admitted the charges of attempted extortion and blackmail in the K case (see paragraph 10 above). On 29 November 1983, the Supreme Court of the Canton of Zürich (1st Criminal Chamber) sentenced him on these charges to imprisonment for four years and nine months, subject to deduction of the 393 days he had spent in detention on remand.

B. Requests for provisional release

1. First request

2. Second request

3. Third request

II.   SWISS EXTRADITION LAW

The Convention on the Extradition of Criminals between Switzerland and the Republic of Argentina, signed on 21 November 1906, has been binding on both countries since 1912. It lays down the formal and substantive conditions applying to extradition between the two countries but does not, either expressly or tacitly, deal with the methods to be used by the courts for supervising detention with a view to extradition. It is therefore Swiss law which applies on this point. At the time of the facts in question and until 31 December 1982, the instrument applicable was an Act of 1892.

1. The Federal Act of 22 January 1892 on Extradition to Foreign States

(a) The Federal Police Office

Once the person had been arrested, it was the Office which conducted the proceedings. It ordered that he be heard by the appropriate cantonal authorities on the extradition request, appointed counsel to represent him if necessary, corresponded with the lawyers involved and informed them of the time-limits to be observed, checked the detainee’s mail and granted or refused him the right to be visited, authorisation to make telephone calls, and so on.

Above all, it was the Office itself which, in most cases, ruled on extradition requests and requests for provisional release.

The former power (to rule on extradition requests) was conferred by section 22 of the 1892 Act and was exercisable where "the arrested individual [had] indicated his consent to his being handed over without delay and ... there [was] no legal impediment to his extradition, or ... he [had] opposed it only on grounds not based on [the 1892] Act, on the Treaty or a declaration of reciprocity ...".

The second power (to rule on requests for provisional release) was conferred by section 25, second paragraph, and was exercisable in all cases where the matter had not been referred to the Federal Court. The Office could grant release if this appeared to be required by the circumstances (section 25, first paragraph).

Furthermore, whenever the Federal Court was to give a ruling, the Office carried out the requisite investigations. If the Court refused to authorise extradition, the Office was bound by that decision. On the other hand, if the Court authorised extradition, the Office could still, for important reasons of political expediency, refuse to extradite the person concerned.

Lastly, it was for the Office to give instructions for the handing over of the person extradited, arrange the practical details and inform the foreign State of the action taken on its request.

(b) The Federal Court

If the arrested person protested against the extradition itself by raising an objection based on the Act, a treaty or a declaration of reciprocity (section 23), the Federal Court was competent to rule on the merits of the extradition (section 24), if necessary after ordering additional investigations (section 23, second paragraph) and the personal appearance of the detainee (section 23, third paragraph). In the latter event - which was very rare -, the hearing took place in public, unless there were serious reasons to the contrary (section 23, third paragraph), and the detainee could be assisted by a lawyer, assigned by the court if need be.

Where the case had been referred to it (section 25, second paragraph), i.e. if an objection related to the extradition itself, the Federal Court was also responsible for ruling on any request for provisional release lodged by the person who was detained with a view to extradition. It could authorise his release if it appeared that the circumstances so required (section 25, first paragraph).

2. Exchange of letters in 1976-77 between the Federal Department of Justice and Police and the Federal Court

"Persons provisionally arrested on the orders of the Federal Department of Justice and Police, in compliance with the wishes of the requesting State, have no right of appeal to a court against the decision to arrest them. The Federal Act on Extradition to Foreign States is, however, being revised, and it is planned to take this opportunity to provide for an appeal to a court against arrests, in accordance with Article 5 para. 4 (art. 5-4) of the Convention." (Federal Bulletin, 1968, vol. II, pp. 1102-1103)

As regards extradition itself, the Office is now competent to rule at first instance (section 55, first paragraph). If, however, the person concerned claims that he "is being proceeded against because of a political offence" or if "the investigation gives serious grounds for thinking that the offence is of a political character", the decision rests with the Federal Court (section 55, second paragraph).

The Office’s decision can be challenged in the Federal Court by way of an administrative-law appeal (section 55, third paragraph).

PROCEEDINGS BEFORE THE COMMISSION

In its report adopted on 13 December 1984 (Article 31) (art. 31), the Commission expressed the unanimous opinion that there had been a breach of Article 5 para. 4 (art. 5-4), since the requirements of procedure and speed laid down therein had not been complied with in the proceedings in question.

The full text of the Commission’s opinion and of the separate opinion contained in the report is reproduced as an annex to the present judgment.

FINAL SUBMISSIONS MADE TO THE COURT

The Agent of the Government reiterated the final submission in his memorial of 5 August 1985, in which he requested "the Court to rule that in the present case Article 5 para. 4 (art. 5-4) of the Convention was not violated, either as concerns the procedure applied or as concerns the requirement of ‘speedy decision’".

AS TO THE LAW

I.   ALLEGED BREACH OF ARTICLE 5 para. 4 (art. 5-4)

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

He claimed that the examination of the requests for release which he made on 25 January and 21 May 1982 had not satisfied the requirements of the above-cited provision, either as regards the procedure followed or as regards the time taken; his application of 9 November 1981 does not fall to be considered, since he withdrew it (see paragraph 22 above).

A. The procedure followed

1. No direct access to a court

The Commission found it surprising that the courts could entertain such a request only if it was accompanied by comments from the executive, which by definition would have refused release.

In the Government’s submission, on the other hand, there was nothing to prevent the Contracting States from regulating access to the courts as long as the measures taken were in the interests of the proper administration of justice.

The Court considers that the intervention of the Office did not impede the applicant’s access to the Federal Court or limit the latter’s power of review. Moreover, it may meet a legitimate concern: as extradition, by its very nature, involves a State’s international relations, it is understandable that the executive should have an opportunity to express its views on a measure likely to have an influence in such a sensitive area.

2. Impossibility of conducting one’s own defence

The Government confined themselves to stating that the Convention did not afford an absolute right to conduct one’s own defence, since the absence of a lawyer might, in certain instances, be prejudicial to the person concerned. The Commission, for its part, expressed no opinion on this point.

3. Impossibility of replying to the Federal Police Office’s opinion and of appearing in person before a court

At the same time he complained of the fact that he had not been able to appear - either as of right or on his application - before a court in order to argue the case for his release. In his view, this was the cause of the worsening of his state of health, which was the main ground of his requests for release. The lack of any contact with a court was, he said, incompatible with the very nature of habeas corpus. It was all the harsher as detention with a view to extradition afforded the detainee fewer points of reference than ordinary pre-trial detention: in Switzerland a court hearing extradition cases confined itself to reviewing compliance with the conditions of the treaty and thus did not consider the merits of the charge.

The Government also disputed the existence of any right to appear in person. They advocated a systematic interpretation of Article 5 (art. 5), stressing notably a contrast between paragraphs 3 and 4 (art. 5-3, art. 5-4); they relied in this connection on the Court’s case-law, in particular the Winterwerp judgment of 24 October 1979 and the judgment of 5 November 1981 in the case of X v. the United Kingdom. In the Government’s submission, to deprive a person against whom extradition proceedings were being taken of his liberty was a measure of international co-operation, and this made the particular circumstances of the individual of secondary importance.

On the other hand, the Delegate considered that proceedings conducted entirely in writing might meet the requirements of Article 5 para. 4 (art. 5-4) if the person concerned had the assistance of a lawyer and the possibility of challenging the lawfulness of his detention in the competent courts. In his view, it was not essential for the applicant to appear in person before the Federal Court.

Giving him the possibility of submitting written comments on the Office’s opinion would have constituted an appropriate means, but there is nothing to show that he was offered such a possibility. Admittedly, he had already indicated in his request the circumstances which, in his view, justified his release, but this of itself did not provide the "equality of arms" that is indispensable: the opinion could subsequently have referred to new points of fact or of law giving rise, on the detainee’s part, to reactions or criticisms or even to questions of which the Federal Court should have been able to take notice before rendering its decision.

The applicant’s reply did not, however, necessarily have to be in writing: the result required by Article 5 para. 4 (art. 5-4) could also have been attained if he had appeared in person before the Federal Court.

The possibility for a detainee "to be heard either in person or, where necessary, through some form of representation" (see the above-mentioned Winterwerp judgment, Series A no. 33, p. 24, para. 60) features in certain instances among the "fundamental guarantees of procedure applied in matters of deprivation of liberty" (see the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 41, para. 76). Despite the difference in wording between paragraph 3 (right to be brought before a judge or other officer) and paragraph 4 (right to take proceedings) of Article 5 (art. 5-3, art. 5-4), the Court’s previous decisions relating to these two paragraphs have hitherto tended to acknowledge the need for a hearing before the judicial authority (see, inter alia, in addition to the above-mentioned Winterwerp judgment, the Schiesser judgment of 4 December 1979, Series A no. 34, p. 13, paras. 30-31). These decisions concerned, however, only matters falling within the ambit of sub-paragraphs (c) and (e) in fine of paragraph 1 (art. 5-1-c, art. 5-1-e). And, in fact, "the forms of the procedure required by the Convention need not ... necessarily be identical in each of the cases where the intervention of a court is required" (see the above-mentioned De Wilde, Ooms and Versyp judgment, Series A no. 12, pp. 41-42, para. 78).

In the present case, the Federal Court was led to take into consideration the applicant’s worsening state of health, a factor which might have militated in favour of his appearing in person, but it had at its disposal the medical certificates appended to the third request for provisional release from custody (see paragraph 28 above). There is no reason to believe that the applicant’s presence could have convinced the Federal Court that he had to be released.

Nevertheless, it remains the case that Mr. Sanchez-Reisse did not receive the benefit of a procedure that was really adversarial.

4. Recapitulation

B. Length of the proceedings

1. Periods to be taken into consideration

The periods in question ended on 25 February and 6 July 1982 respectively, on which dates the requests were rejected (see paragraphs 26 and 31 above).

The total duration of the periods to be considered is thus thirty-one days in the first instance and forty-six days in the second.

2. Compliance with the requirement that decisions be taken "speedily"

The fact nevertheless remains that the applicant was entitled to a speedy decision - whether affirmative or negative - on the lawfulness of his custody. The decisions of 25 February and 6 July 1982 clearly show, moreover, that the Federal Court confined its examination to the requests in question: after succinctly stating the facts, it weighed the risks of maintaining Mr. Sanchez-Reisse’s detention and those of provisionally releasing him. There is no reason to believe that the problem was a complex one, necessitating detailed investigation and warranting lengthy consideration. More particularly, whilst the applicant’s state of health was undoubtedly inseparable from other considerations, the latter were readily apparent in a case-file that had been under examination for approximately a year.

In explanation of the duration of the proceedings, which was half as long again as on the first occasion, the Government made a number of points: the Federal Court was going through a very busy period; it was on the point of giving its decision as to extradition itself, which meant that the case no longer had priority; it could not do otherwise than reject the request because it was based on grounds identical to those of the previous one.

The Court does not see why these factors should have deprived Mr. Sanchez-Reisse of the guarantee of rapidity prescribed in Article 5 para. 4 (art. 5-4). After all, the matter was particularly straightforward because the applicant had raised it in similar terms in an earlier request. Here too, therefore, the period in question - twenty days at the Office and a further twenty-six days at the Federal Court - was excessive.

3. Recapitulation

II.   THE APPLICATION OF ARTICLE 50 (art. 50)

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

The claim, submitted in writing on 3 April 1986 (see paragraph 8 above), concerned only lawyer’s fees (5,000 SF) and travel and hotel expenses (1,868 SF).

In his comments of 24 April (see paragraph 8 above), the Delegate of the Commission indicated that he found the claim reasonable.

The Government, for their part, lodged observations on 24 January 1986 (see paragraph 8 above). Envisaging purely in the alternative the possibility of the Court’s finding a violation of the Convention, they considered the application of Article 50 (art. 50) to be ready for decision and did not in principle contest Mr. Sanchez-Reisse’s claim. However, they invited the Court to take into account, if appropriate, the rejection of certain complaints and insisted that any amounts awarded be in some wise proportionate to those awarded in two earlier cases concerning Switzerland (Minelli; Zimmermann and Steiner).

FOR THESE REASONS, THE COURT

1. Holds by five votes to two that there has been a violation of Article 5 para. 4 (art. 5-4) of the Convention on account of the non-compliance with procedural guarantees;

2. Holds by six votes to one that there has been a violation of Article 5 para. 4 (art. 5-4) on account of the failure to take decisions "speedily";

3. Holds by six votes to one that the respondent State is to pay to the applicant six thousand eight hundred and sixty-eight Swiss francs (6,868 SF) for costs and expenses.

Done in English and in French, and delivered at a public hearing at the Human Rights Building, Strasbourg, on 21 October 1986.

Walter GANSHOF VAN DER MEERSCH

President

Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 52 para. 2 of the Rules of Court, the following separate opinions are annexed to the present judgment:

- joint concurring opinion of Mr. Ganshof van der Meersch and Mr. Walsh;

- partly dissenting opinion of Mrs. Bindschedler-Robert;

- dissenting opinion of Mr. Pinheiro Farinha.

W. G.v.d.M.

M.-A. E.